Citation NR: 9727471
Decision Date: 08/07/97 Archive Date: 08/14/97
DOCKET NO. 95-42 144 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for asbestosis.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
L. L. Gann, Counsel
REMAND
The veteran had active service from December 1941 to
September 1945. He contends that he currently suffers from
respiratory problems that he incurred as a result of his
exposure to asbestos during active service. He notes that he
served as a Chief Molder aboard the U.S.S. Rigel and was
exposed to asbestos in a confined area. He also worked in
the foundry at Sub-base Pearl Harbor, where he was again
exposed to asbestos in the course of metal and mill work.
The veteran has also acknowledged, however, that he worked as
an iron molder for several years prior to his entrance into
service, and that he was employed for more than 35 years
after service separation as a millwright or molder in a steel
mill.
Asbestosis is typically manifested many years after exposure
to asbestos; the latent period varies from 10 to 45 years or
more between first exposure and development of a related
disease process. Some of the major occupations that involve
exposure to asbestos include mining, milling, work in
shipyards, carpentry/construction, and the manufacture and
servicing of friction products such as clutch facings and
brake linings. The latent period for development of
diseases associated with asbestos exposure varies from 10 to
45 or more years between first exposure and development of
the disease process. See VA Adjudication Procedure Manual,
M21-1, Part VI, para. 7.68. In light of this extended
latency period, a claimant’s development of asbestosis or
other disease process related to asbestos exposure many years
after service shall not preclude an award of service
connection if the weight of all the evidence presented
demonstrates that his current disease process is linked to
asbestos exposure during active service. 38 C.F.R.
§ 3.303(d).
In this case, issues remain unclear with regard to the
veteran’s current disability picture. The veteran was
afforded a June 1995 Department of Veterans Affairs (VA)
pulmonary examination, at which time he described his
prolonged exposure to asbestos for many years associated with
his work in steel mills and foundries. He described
complaints of shortness of breath and a mild, productive
cough, with no chest pain. The VA examiner observed that the
veteran did exhibit some shortness of breath and a slight
cough. On auscultation, there was a “quite prolonged”
expiration with a couple of rales over both lungs. A
pulmonary function study indicated mild airflow obstruction
with air trapping. Arterial blood gases were unremarkable
except for elevated carboxyhemoglobin.. The VA examiner’s
diagnoses were “chronic obstructive lung disease,
asbestosis.”
The Board notes, however, that clinical diagnosis of
asbestosis necessitates both a history of exposure, as well
as radiographic evidence of parenchymal lung disease.
Radiographic changes indicative of asbestos exposure include
interstitial pulmonary fibrosis, pleural effusions and
fibrosis, and pleural plaques; granulomatous disease,
atelectasis, or calcific changes are not included in this
list of representative changes. VA Adjudication Procedure
Manual, M21-1, Part VI, paras. 7.68(a), (b)(2).
The 1995 VA examination report contains no accompanying X-ray
report, nor does the examiner’s findings indicate that a
chest X-ray was taken in order to verify that the current
nature of the veteran’s respiratory disability. This is
particularly crucial in this instance, where the VA examiner
also made a diagnosis of chronic obstructive pulmonary
disease (COPD), which is a separate and distinct disease
process from restrictive asbestosis.
The veteran also noted in a May 1995 statement that he
received his intitial diagnosis of “asbestosis” in September
1994. He did not indicate, however, the name, address, or
circumstances surrounding that diagnosis, and records of that
medical consultation are not contained in the claims folder.
VA has no duty to assist the veteran in the development of
his claim where his claim is not well grounded. 38 U.S.C.A.
§ 5107(a). Nonetheless, where VA is placed on notice that
evidence may exist that, if obtained, may make the veteran’s
claim well-grounded, VA is under an obligation to notify the
veteran of the evidence needed to complete his application.
38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown,
8 Vet.App. 69, 77-80 (1995). The June 1995 VA examination
provides incomplete information regarding the veteran’s
current diagnosis of asbestosis, and it appears that other
current medical evidence on this subject has not yet been
associated with the claims folder. Consequently, additional
information is needed to determine the current status of the
veteran’s disability picture.
The appellant is hereby notified that it is his
responsibility to report for the examination and to cooperate
in the development of the case, and that the consequences of
failure to report for a VA examination without good cause may
include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655
(1996).
In light of the foregoing, this case is REMANDED for the
following action:
1. The RO should obtain the name and
address of the medical provider who
initially diagnosed the veteran’s claimed
asbestosis in September 1994, as well as
the names and addresses of all medical
care providers who have treated the
veteran for his respiratory complaints
since September 1994. The RO should also
secure the necessary releases for this
information. Thereafter, the RO should
contact these facilities to obtain the
veteran’s medical records.
2. The RO should arrange for the veteran
to undergo a VA pulmonary examination to
determine the current status of his
claimed respiratory disabilities, to
include whether the veteran suffers from
asbestosis or other respiratory disease
associated with asbestos exposure. All
pertinent tests should be performed,
including chest X-rays. Interpretations
of these X-rays should be provided by a
certified B-reader to determine the
nature of all radiographic findings. Any
diagnosed respiratory diseases that are
not linked to asbestos exposure should
also be noted.
The claims folder and a copy of this
Remand should be provided to the examiner
prior to his or her evaluation of the
veteran.
3. After this development is completed,
the RO should readjudicate the issue of
service connection for asbestosis. If
the decision remains adverse, the veteran
and his representative should be
furnished with a supplemental statement
of the case and provided a reasonable
opportunity for reply.
Thereafter, the RO should return the claims folder to the
Board for appellate review of the issue on appeal. The Board
intimates no opinion as to the ultimate outcome of this case,
and the veteran need take no action until otherwise notified.
He may present additional evidence or argument while the case
is in remand status at the RO. Cf. Quarles v. Derwinski, 3
Vet.App. 129, 141 (1992).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MARY GALLAGHER
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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